ANNUAL CONTRACT & TERMS OF SERVICE
This AGREEMENT FOR DIGITAL MOBILE MARKETING SERVICES
(“Agreement”), goes into effect the day your GoCard build is submitted and is known as the (“Effective Activation Date”) in which your contract will automatically renew annually, is by and between GoCard, Inc and you (“Client”).
1. DIGITAL MOBILE MARKETING SERVICES
W\GoCard, Inc will provide digital services for Client in connection with creation and/or placing of branding, advertising, marketing, consulting,
creative and/or digital services for Client, during the Term, as provided in the attached (Attachment A) Statement of Work (“SOW”), incorporated herein by reference (such services are collectively referred to as “Services”). During the term of this agreement, Client may wish to assign additional projects, products, or services to GoCard, Inc beyond the Services outlined in the SOW (“Out-of-Scope Assignments”). GoCard, Inc agrees to accept such Out-of-Scope Assignments only upon a separate written agreement with Client regarding additional compensation to be paid to GoCard, Inc in the amount of $99/hr. Nothing in this Agreement will be deemed to require GoCard, Inc to undertake any act or perform any services which in its good faith judgment would be misleading, false, libelous, unlawful, in breach of a contract, or otherwise prejudicial to Client’s or GoCard, Inc’s interests.
2. CLIENT APPROVAL AND DIGITAL ASSETS
GoCard, Inc shall submit to Client for its approval all elements of any materials to be produced or placed hereunder, including, but not limited to, all copy, layouts, slogans, websites artworks, graphic materials, and photography (collectively, “Materials”). Submission for prior approval of Materials will not be required to the extent that they are preliminary only.
3. FEES, PAYMENTS, AND EXPENSES
(A) Initial Setup Fee. As compensation for the Services rendered pursuant to this Agreement, Client agrees to pay GoCard, Inc a setup fee of $499.95 to initially create and design your GoCard.
(B) (If Agency) Additional On-Boarding Fee per agent (additional person to be added and marketed to your GoCard). Client agrees to pay GoCard, Inc an Onboarding Fee of $99.95 per agent.
(C) Monthly Platform Hosting/Maintenance Fee. Client agrees to pay GoCard, Inc $99.95/mo per GoCard
(D) (If Agency) Monthly Agent Hosting/Maintenance Fee. Client agrees to pay GoCard, Inc an additional $19.95/per agent that is part of the
GoCard Agency Platform.
4. CUSTOM PROGRAMMING, CODING & SPECIAL INTEREST DEVELOPMENT
If you can dream it, we can build it slogan refers to all custom programming and coding that falls outside the scope of the GoCard Platform. Client agrees to pay GoCard, Inc for any custom programming, creation or coding that falls outside the scope of the initial setup fee for GoCard at the rate of $99/hr
5. THIRD-PARTY SOFTWARE, API, PROGRAMS & APPLICATIONS
Client agrees to pay GoCard, Inc’s any additional subscriptions or costs for any 3rd party software initial or monthly fees that require a special service to perform specific requests, tasks, or services outside the initial GoCard Package. There will be no markup on any 3rd party Software, only the cost of $99/hr to install, program, test and implement and special request or requirement.
6. MARKETING
Client hereby grants GoCard, Inc the right to use the name and service marks of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of GoCard, Inc and a brief scope of services provided.
7. TRADEMARKS & SERVICE MARKS
Trademarks. GoCard, Inc may create or develop trademarks for Client, in the form of taglines, slogans, logos, designs, or product and brand names (collectively, the “Marks”). Client shall ultimately be responsible for confirming availability and registering such Marks, even though, pursuant to the SOW, GoCard, Inc may assist in coordinating the effort associated with clearing and registering the Marks.
8. CONTRACT TERMS & TERMINATION
(A) Term. This Agreement will commence on the Effective Date and shall continue and will continue in full force and effect for one (1) year.
(B) Termination. Only GoCard, Inc may terminate this Agreement earlier than the one (1) year term discussed above by giving 30 Day written
notice to the client upon the occurrence of any of the following events: (i) GoCard, Inc wishes to terminate the Agreement, for any reason, and such decision, and respective 30 days written termination notice to the client, occurs within ninety (90) days of the Effective Date.
(ii) The commission by the client of a material breach of this Agreement, which breach is not cured within thirty (30) days of the
other party’s receipt of written notice of such breach; or
(iii) The client has or may be commencing a voluntary or involuntary bankruptcy, receivership, or similar proceeding with respect to GoCard, Inc.
(C) Effect of Termination. Client shall pay GoCard, Inc for all services rendered and work performed up to the effective date and any remaining months remaining in annual contract. Accordingly, GoCard, Inc will send to Client a final bill for the last month and any remaining months of
service remaining in your contract. Client shall pay the invoice within ten (10) days of receipt.
(D) Return of Proprietary or Confidential Information. Within ten (10) days after the termination or expiration of this Agreement, each party
shall return to the other all Proprietary or Confidential Information of the other party (and any copies thereof) in the party’s possession or, with the approval of the party, deactivate, destroy all such Proprietary or Confidential Information.
9. CONFIDENTIALITY
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is
independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any Agreement for Marketing and Brand Development Services form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, GoCard, Inc and Client acknowledge and agree that their
obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
10. RESPONSIBILITIES, REPRESENTATIONS & WARRANTIES
(A) GoCard, Inc represents and warrants that (i) the Services provided hereunder will be performed in a professional manner, and (ii) any software, hardware, websites, web-based or technology-related Services (collective “Electronic Services”) will be free of material bugs or defects for thirty (30) days after delivery. Such warranty does not extend to any modification of Services by anyone other than GoCard, Inc or its Subcontractors at the time of such modification, any abuse or misuse of Services by Client, or use of Services in an operating environment that differs materially from the specifications agreed to by the parties.
(B) DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THIS
AGREEMENT, ELECTRONIC SERVICES ARE PROVIDED on an “AS IS” and “AS AVAILABLE” basis, AND GoCard, Inc EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
(C) THIRD PARTY DISCLAIMER. GoCard, Inc MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
11. INDEMNITIES.
(A) Client Indemnity. Client shall indemnify, defend, and hold harmless GoCard, Inc, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each a “GoCard, Inc Indemnity”) from and against any and all Loss incurred by an GoCard, Inc Indemnity based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any GoCard, Inc Indemnity with respect to any advertising, branding, research or other products or services which GoCard, Inc prepared or performed for Client hereunder to the extent that such Claim relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by Client or its agents to GoCard, Inc including, without limitation, information concerning Client’s products and services, the products or services of Client’s competitors or Client’s product or service category; (ii) the use of any
marketing, branding, research, advertising, packaging, trademark, software, hardware or other materials, or components thereof, furnished by Client or its agents to GoCard, Inc to be included in any Materials or media placements; (iii) the use of any materials or data provided or created by GoCard, Inc and changed by Client or its agents or used in a manner different from that agreed by the parties; (iv) risks or restrictions known by Client where Client nonetheless elected to proceed; (v) death, personal injury, or product liability (including health and safety) claims or actions arising from the use of Client’s products and services; (vi) the unauthorized or improper use of Materials or the Marks by Client, Client’s designees, licensees, distributors, franchisees or Client Affiliates; (vii) claims brought by Client’s employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship; (viii) allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right; (ix) any material breach of the terms of this Agreement by, or any act of omission of, Client or its agents or employees relating to media commitments made by GoCard, Inc pursuant to Client’s approval as provided for herein; and (x) the negligence, gross negligence, bad faith, or intentional or willful misconduct of Client or its employees, agents or Client Affiliates.
(B) GoCard, Inc Indemnity. Excluding claims covered by Section 11(a), GoCard, Inc shall indemnify, defend, and hold harmless Client, the Client Affiliates, and their respective employees, members, managers, officers, directors, shareholders, and agents (each a “Client Indemnitee”) from
and against any and all Loss incurred by a Client Indemnity based upon or arising out of any Claim made or brought against Client arising out of the production or dissemination of materials produced hereunder that involve (i) libel, slander, defamation, copyright infringement, right of publicity and/or invasion of right of privacy arising out of work created by GoCard, Inc and in final form (i.e., ready to be disseminated to the public); or (ii) damage to or destruction of personal property, injury to or death of any person directly attributable to or arising out of GoCard, Inc’s negligence or willful misconduct in connection with the performance of the Services hereunder.
(C) Third Party Investigations of Client. In addition, Client shall reimburse GoCard, Inc for all costs and expenses (including reasonable attorneys’ fees and costs) incurred by GoCard, Inc resulting from any third-party investigation of the acts or practices of Client including, without limitation, any costs or expenses related to compliance with any third-party subpoena or other discovery request. Should GoCard, Inc be served with a third-party subpoena in connection with Services it performed for Client, GoCard, Inc shall promptly advise Client and consult with Client regarding GoCard, Inc’s response to the subpoena to the extent the subpoena seeks Client data, documents, or information pertaining to Client so that Client may have an opportunity to seek appropriate relief.
(D) Notification of Claims. A party entitled to be indemnified pursuant to this Section 12 (the “Indemnified Party”) shall provide prompt written notice to the party liable for such indemnification (the “Indemnifying Party”) of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder. Additionally, the Indemnifying Party shall employ counsel reasonably acceptable to the Indemnified Party to defend any such claim or demand asserted against the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any such claim or demand at its own expense. The Indemnified Party shall cooperate with the Indemnifying Party in any such defense. In addition, the Indemnified Party shall always have the right to fully participate in any settlement which it reasonably believes would have an adverse effect on its business, but the Indemnified Party shall not make any settlement of any Claims that might give rise to liability of the Indemnifying Party without the prior written consent of the Indemnifying Party. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third-party claim or demand.
(E) LIMITATION OF LIABILITY. EXCLUDING INDEMNIFICATION OBLIGATIONS OR DAMAGES ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS (excluding direct damages for GoCard, Inc’s anticipated fees), BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, NOR
SHALL GoCard, Inc’s AGGREGATE LIABILITY FOR ANY OTHER DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE REVENUE PAID BY CLIENT TO GoCard, Inc IN ACCORDANCE WITH THE APPLICABLE SOW.
12. OWNERSHIP
(A) Work Product. All (Print or Marketing) Material and assets (that are not part of the monthly service) developed or prepared by GoCard, Inc or its employees or Subcontractors for Client hereunder that are subject to copyright, trademark, patent, or similar protection shall become the property of Client and deemed “Work Product” provided that (i) the Materials are produced in final form (i.e., ready to be disseminated to the public) by GoCard, Inc for Client within six (6) months of being proposed by GoCard, Inc and (ii) Client has paid to GoCard, Inc all fees and costs associated with creating and, where applicable, producing the Materials. All title and interest to Work Product shall vest in Client as “works made for hire” within the meaning of the United States Copyright Act. To the extent that the title to any such Work Product may not, by operation of law or otherwise, vest in Client as a work made for hire or any such Work Product may not be considered a work made for hire, all right, title and interest therein is hereby irrevocably assigned by GoCard, Inc to Client. In order to assure that its employees and Subcontractors do not possess proprietary rights in the Work Product that are inconsistent with Client’s possession of such rights, GoCard, Inc will, as necessary, obtain the assignment and conveyance to Client, or to GoCard, Inc for the benefit of Client, of any proprietary rights that such persons or entities may then have or may have in the future to such Work Product.
(B) Third Party Licenses. Notwithstanding the provisions stated above, it is understood that GoCard, Inc often licenses materials from third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the licensor, and Client agrees that it remains bound by the terms of such licenses and that it does not obtain proprietary rights in such third-party materials beyond the
terms and conditions contained in the pertinent license. GoCard, Inc will keep Client informed of any such limitations.
(C) GoCard, Inc Materials. Notwithstanding any other provision of this Agreement, GoCard, Inc shall retain all right, title and interest in and to, including any intellectual property rights with respect to, any data, designs, processes, specifications, software, applications, source
code, object code, utilities, methodologies, know-how, materials, information and skills (and any derivative works, modifications and enhancements thereto) owned, acquired or developed by GoCard, Inc or its licensors, and regardless of whether incorporated in any Work Product, (i) prior to the Effective Date; (ii) independently of, or not in connection with the performance of, the Services; (iii) in the general conduct of its business or to serve general functions that are not specific to Client’s unique requirements; or (iv) if generally applicable, non-site specific and unrelated to the “look and feel” of the Materials or other deliverable, in connection with the Services (or partially in connection with the Services) (collectively, “GoCard, Inc Materials”). Subject to fulfillment of Client’s payment obligations hereunder, GoCard, Inc hereby
grants Client a worldwide, perpetual, irrevocable, royalty-free, nonexclusive license, with right to sublicense (but only for the benefit of Client or its permitted successors or assigns), to use GoCard, Inc Materials actually incorporated into Work Product pursuant to this Agreement as necessary for or in connection with the use, management and maintenance of such Work Product, provided that Client shall not have the right to publish or distribute any GoCard, Inc Materials other than as part of such Work Product or to create derivative works of GoCard, Inc Materials.
13. NOTICES
Notices under this Agreement are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), or personal delivery to the other party at the address below: Notice is effective: (i) when delivered personally, (ii) three (3) business days after sent by certified mail, or (iii) on the business day after sent by a nationally recognized courier service for next day delivery. A party may change its notice address by giving notice in accordance with this paragraph.
14. WAIVER
The failure of any party to seek redress for violation of or to insist upon the strict performance of any agreement, covenant or condition of this Agreement shall not constitute a waiver with respect thereto or with respect to any subsequent act.
15. NO THIRD-PARTY BENEFICIARIES
This Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and assigns and no other person will have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
16. SUCCESSORS and ASSIGNS
This Agreement shall be binding upon & inure to the benefit of the parties & permitted successors & assigns.
17. ASSIGNMENT
Except as may be necessary in the rendition of the Services as provided herein, neither GoCard, Inc nor Client may assign any part or all of this Agreement, or subcontract or delegate any of their respective rights or obligations under this Agreement, without the other party’s prior written consent. Any attempt to assign, subcontract, or delegate in violation of this paragraph is void in each instance.
18. PARAGRAPH HEADINGS & CAPTIONS
Paragraph headings and captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, or extend the scope or intent of this Agreement or any provision thereof.
19. SEVERABILITY
Wherever possible each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under any such law, such provision shall be limited to the minimum extent necessary to render the same valid or shall be excised from this Agreement, as the circumstances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited or as if said provision had not been included herein, as the case may be, and enforced to the maximum extent permitted by law, and the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in order that the transactions contemplated by this Agreement can be consummated as contemplated.
20. FORCE MAJEURE
Neither Client nor GoCard, Inc shall be liable to the other for any failure, inability, or delay in performing hereunder if caused by any cause beyond the reasonable control of the party so failing, including, without limitation, an Act of God, war, strike, or fire; but due diligence shall be used in curing such cause and in resuming performance.
21. SURVIVAL
Provisions of this Agreement, the performance of which by either or both parties, or by their sense and context, are intended to survive, will survive the completion, expiration, termination, or cancellation of this Agreement..
22. ENTIRE AGREEMENT
This Agreement and the Schedules attached hereto constitute the entire agreement between GoCard, Inc and Client relating to the subject matter hereof and supersedes any prior agreement or understandings between them. This Agreement may not be modified or amended unless such modification or amendment is agreed to by both GoCard, Inc and Client in writing. This agreement automatically renews 365 Days after initial activation date unless GoCard, Inc is properly notified within 30 days of automatic renewal date.
